When the Truth Prevails, What Happens to Justice?

By Daniel Marín López*

 

“This Commission is for the truth to prevail. It is for Colombia. It is also for those who are not victims. It is for all of us to say: never again. Never again.”

With those words the Colombian government’s chief negotiator announced the creation of a truth commission in that country, after three years of peace negotiations with the FARC guerrilla forces. Like in the Latin American transitions of Argentina, Chile, and Peru or others like that of Timor Leste in Asia, truth commissions are the first element of transitional justice that guide the other three: justice, reparations, and guarantees of non-repetition.

Nevertheless, this commission could be innovative from a comparative perspective. According to the negotiating parties’ statement, the commission will seek to reveal the practices that led to human rights violations in a broad sense. Truth commissions usually have focused their efforts to a limited list of violations. Considering this and the more than 50 years of armed conflict, Colombia faces quite a challenge, as Dejusticia recently analyzed.

Now that negotiations have advanced to consider the second element, justice, it is worth considering: how can truth contribute to justice?

This is a worthwhile question. The armed conflict’s victims have asked for, as one of the main reparative measures, for the perpetrators of mass atrocities, those that usually go unnamed, to finally be given one. The truth commission is a sure step in that direction.

However, for the commission to crisscross the country, elevate the different voices of Colombians, and uncover the x-ray of the infamous conflict against the civil population, in the best of cases is not enough. If the commission is placed within an integrated system of transitional justice where the consolidation of citizens’ rights guarantee the non-repetition of the infamy of conflict, it should be thought of in a model of justice that returns hope in the state, as Paul Seils commented in a recent analysis.

Creating a truth-seeking mechanism provides the path for society to formulate that model of justice. I will highlight two potential benefits that other commissions elsewhere have taught us.

Strengthening Democracy

Demonsorators perform during Argentina’s “Day of Remembrance.” Argentina was one of the first countries to conduct a truth commission. Source: Flickr Creative Commons via Beatrice Murch.

Demonsorators perform during Argentina’s “Day of Remembrance.” Argentina was one of the first countries to conduct a truth commission. Source: Flickr Creative Commons via Beatrice Murch.

Truth commissions’ first benefit can be put in terms of social justice, it can revitalize democratic values in a society hurt by conflict. Following Amartya Sen’s The Idea of Justice, “democracy must be judged not only by its fomally existing institutions, but also in the measure by which different voices of society’s diverse sectors can really be heard.”

In this sense, the commission has much to offer. The South African commission, for example, by including the conflict’s different actors, fashioned itself into a key venue for writing a plural history in a society where there was a thin line that distinguished victims from perpretrators due to the conflict’s degradation. In this sense, the Colombian commission could also be a forum where its society can consolidate citizen participation.

Roadmap for Transitional Justice

Its second benefit: the commission’s conclusions can serve as a roadmap to determine the roles of the state’s judicial bodies in the framework of transitional justice. Thus, it can issue recommendations regarding the selection criteria for the most responsible, those who due to their role in the violations should be judged in transitional courts. Priscilla Hayner in Unspeakable Truths highlighted how the achievements of the commissions of Argentina, Chile, and Haiti allowed judicial authorities to centers their efforts on the masterminds behind mass atrocities. Likewise, it can lay the foundations for a possible partial and conditional amnesty for those bearing arms who were not involved directly in human rights violations.

South Africa’s Apartheid Museum. Source: Flickr Creative Commons via Sea Turtle.

South Africa’s Apartheid Museum. Source: Flickr Creative Commons via Sea Turtle.

Despite being a contentious issue in international law, as the International Criminal Court’s Office of the Prosecutor has expressed, a formula that counterbalances criminal justice with high levels of truth and support for reparations by demobilized forces can better lend itself to the goals of the transition.

The commission offers the opportunity for perpetrators to dialogue with what happened and be exposed to public scrutiny for their actions. Like in Kenya, Liberia, and Nepal, this body can recommend who qualifies for an amnesty, with the condition that they fully support transitional policies that the government will implement, in particular their reintegration into Colombian society.

With the announcement of the creation of a Colombian truth commission, we should face the challenge of thinking about a context where the truth can prevail, but above all, consider it as a window of opportunity to create a transitional justice that lays the foundation for a more vigorous democracy for Colombia’s future.

 

*Daniel Marín López is a researcher at the Center for the Study of Law, Justice and Society (Dejusticia).